Michelle Moody worked as a substitute custodian for the Atlantic City Board of Education. She claims the custodial foreman of the New York Avenue School, Maurice Marshall, sexually harassed her. For example, she claims he made sexual comments to her, grabbed her breasts and buttocks, and offered to give her more hours of work if she performed sexual favors for him. She also alleges that on one occasion Mr. Marshall called her into his office and tried to take off her shirt, and on another occasion had her to come into his office while he was naked.

Mr. Marshall subsequently sent Ms. Moody a series of text messages implying he would offer her a full time job if she had sex with him. According to Ms. Moody, Mr. Marshall showed up at her home that evening and told her she would receive an employment contract if she had sex with him. Mr. Marshall then grabbed Ms. Moody and began to kiss her. Ms. Moody claims she gave into Mr. Marshall’s advances because she was afraid she would lose her job.

A few days later, Ms. Moody told Mr. Marshall that she would not have sex with him again. She claims that after that point Mr. Marshall began treating her differently, including by assigning her fewer hours of work.

Ms. Moody filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”). She subsequently filed a lawsuit against the Board of Education alleging sexual harassment and retaliation in violation of the New Jersey Law Against Discrimination (“LAD”) and Title VII of the Civil Rights Act of 1964.

The District Court dismissed Ms. Moody’s case, finding the Board of Education was not liable for Mr. Marshall’s actions because he was not her supervisor. It also found the Board of Education was entitled to a defense because it had taken “prompt action” after Ms. Moody complained about the harassment and retaliation and Ms. Moody had not suffered a “tangible employment action.”

Ms. Moody appealed to the Third Circuit. On September 6, 2017 the Third Circuit reversed the District Court’s order which had dismissed the case. It found Ms. Moody had sufficiently alleged that Mr. Marshall sexually harassed her. It explained that the Board of Education could be liable for Mr. Marshall’s sexual harassment because he was her supervisor since he was empowered to take “tangible employment actions.” In particular, the Court explained that it was undisputed that as a custodial foreman Mr. Marshall had the authority to decide whether and when Ms. Moody worked at the New York Avenue School, which is a “tangible employment action” since he could (and at times did) cause Ms. Moody financial harm by denying her opportunities to work.

The Third Circuit also found sufficient evidence to support Ms. Moody’s retaliation claim. Specifically, it recognized that Ms. Moody’s hours had been dramatically reduced immediately following her complaint about Mr. Marshall’s sexual harassment. It concluded that “a reasonable employee could view this reduction of work hours, and the resulting decreased pay, as sufficient to discourage him or her from filing a sexual harassment complaint.” It also found enough evidence to demonstrate a connection between Ms. Moody’s objections to the sexual harassment and the reduction to her hours, including the fact that she was not assigned any hours during the first two pay periods after she made her complaint and that her hours remained significantly reduced thereafter in comparison to her hours before she made her complaint.

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